In Chartwell Housing REIT v. Healthcare, Office and Professional Employees Union, Local 2220, 2022CanLII 6832 (ON LA) (Chartwell), Arbitrator Gail Misra considered a provision in a mandatory COVID-19 vaccination policy that provided that those who did not provide proof of vaccination or medical exemption by a specified date could be placed on an unpaid leave of absence or have their employment terminated. She determined that because the portion of the provision providing for employment termination as an alternative to vaccination/exemption violated the applicable collective agreement (CA), it should be struck from the policy. The arbitrator emphasized, however, that her decision should not be interpreted as indicating that an employer would be required to leave a non-compliant employee on an indefinite leave of absence, as “At some point…it will likely have just cause to terminate the employment of such an employee.” 

Background

The employer imposed a COVID-19 mandatory vaccination policy on the employees of four of its long-term care homes (Policy). The Policy provided that effective October 12, 2021, employees had to provide proof of full vaccination or written proof of a medical reason why they could not be vaccinated and its effective period. Those who did not provide proof of vaccination or medical exemption by this time would be placed on an unpaid leave of absence or have their employment terminated.

After the employer announced the Policy, the Ministry of Long-term Care issued a directive indicating that employees in long-term care homes would be required to provide proof of vaccination by November 15, 2021. The directive provided that those who failed to provide proof would not be able to attend a long-term care home; however, it did not require the employment of such employees to be terminated.

The employer first placed employees who did not comply with its Policy on an unpaid leave of absence. Later it terminated their employment for just cause.

The union filed a policy grievance, arguing that the portion of the Policy that makes an employee’s failure to get vaccinated a disciplinary offence that may lead to termination from employment is not a requirement of the directive, is unreasonable, is a violation of the employer’s obligations under the CA, and should not be allowed to stand. The union did not dispute any other aspects of the Policy.

Award

The arbitrator determined that the employer violated Article 18.4 of the CA, which provides:

Prior to effecting any significant changes in rules or policies which affect employees covered by this Agreement, the Employer will discuss the changes with the Union and provide copies to the Union.

Changes in the Policy were significant because none of the employer’s prior immunization policies included a threat of termination of employment for failure to get vaccinated. Furthermore, prior to effecting these significant changes the employer failed to provide the union with a copy of the Policy and discuss the changes with the union. The arbitrator ordered that the employer abide by the language and spirit of Article 18.4 in the future.

The arbitrator also found that the employer breached Article 18.5 of the CA, which provides: 

Existing rights, privileges, benefits, practices and working conditions shall be continued to the extent that they are more beneficial and not inconsistent with the terms of this Collective Agreement unless modified by mutual agreement of the Employer and the Union.

She determined that the existing practice was that employees who were non-compliant with the employer’s vaccination policies would be taken off the schedule and put on an unpaid leave of absence. This practice was more beneficial to employees than the change in the Policy, which provided that in addition to the leave of absence penalty, employees could be discharged for refusing to be vaccinated or to provide a medical exemption. She therefore decided that the existing practice regarding vaccinations “shall be continued . . . unless modified by mutual agreement of the Employer and the Union,” and the statement “or may have their employment terminated” would be struck from the Policy.

Finally, the arbitrator decided that to the extent the Policy states that as an alternative to non-compliant employees’ being put on unpaid leave they would have their employment terminated, the Policy was unreasonable and inconsistent with the terms of the CA.

Although in the circumstances of the CA in question the arbitrator struck the portion of the Policy that provided for the termination-of-employment alternative, she notably made a point of emphasizing the Management Right of employers under a CA to terminate non-compliant employees for just cause:

Despite my findings above, it is important to state that this decision should not be taken by those employees who choose not to get fully vaccinated as indicating that the Employer would never be able to terminate their employment for non-compliance with the policy in question, or indeed any reasonable policy. It is only the automatic application of this policy as it respects discharge that has been found to be unreasonable. Employees must understand that even if their Union and the Employer are unable to reach agreement pursuant to Art. 18.5, the Employer continues to have its Management Right under the collective agreement to terminate an employee for just cause. Hence, employees who remain non-compliant with the policy should not think that they are protected forever from the possibility of being dismissed, as the Employer may at some point do so if it feels it can establish that it has just cause for termination of any particular employee. No employer has to leave a non-compliant employee on a leave of absence indefinitely. At some point, and subject to the Employer warning employees of the possibility of termination, and having considered other factors, it will likely have just cause to terminate the employment of such an employee. (para. 243)

Bottom Line for Employers

Chartwell reminds employers that wish to include in their mandatory vaccination policies an employment termination alternative for non-compliant employees, that they must do so in a manner that is consistent with the terms of their CAs. Even in the absence of a termination alternative in a vaccination policy, Chartwell indicates that employers are not expected to keep non-compliant employees on a leave of absence indefinitely. Provided they warn employees that termination of employment is possible and consider any other factors that may be relevant, employers may be able to utilize their Management Rights under their CAs to terminate the employment of non-compliant employees for just cause.